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Killing us softly

1:48 pm in Uncategorized by Shahid Buttar

John Brennan - Caricature

John Brennan - Caricature

Why Holder’s letter carries little water

Last week, Senator Rand Paul (R-TX) forced a long overdue conversation in Washington about checks and balances on executive power. Yet few observers recognize the ultimate importance of his actions, or why the Senate’s confirmation of the new CIA director remained premature.

Prompted by Sen. Paul’s filibuster last Wednesday, Attorney General Holder wrote a letter the following day, acknowledging that our government lacks authority to execute Americans within the US without trial.

His concession is welcome, but must be taken with a grain of salt. It behooves observers to understand why, for several reasons, Holder’s statement may be less secure than we would ideally hope.

Accepting disclosure without investigation

Much of the controversy surrounding Brennan’s nomination concerned mere disclosure: whether the executive branch would let Congress read the administration’s legal analysis governing the targeted assassination program. President Obama apparently heard the message, admitting in his State of the Union address that more transparency is required.

The result proved underwhelming. One congressional committee received a single legal memo among several, which did not even purport to delineate the boundaries of the assassination program, but rather explored the use of deadly authority against a single target among several hundred who have been killed, including at least four US citizens.

Mere disclosure of some OLC memos to some Senators is insufficient.

Meaningful congressional oversight requires full access to all the legal memos, as well as active investigation of the underlying facts. It is not enough to simply read executive legal analyses paying lip service to constitutional values routinely violated on the ground.

The congressional intelligence committees, after all, were founded after robust investigations revealed widespread abuses by intelligence agencies, including the CIA, spanning decades and the terms of several presidents. Factual investigation has revealed more recent abuses, as well.

Last year, the Senate Intelligence Committee concluded a thorough investigation of torture, which produced a report recognizing torture as an international human rights abuse that ultimately undermined US national security by producing false intelligence, eroding pro American sentiment abroad, and helping our enemies recruit foot soldiers.

Yet, reflecting its pattern of embracing secrecy while claiming transparency, the Obama administration has refused to declassify the report. It is only because neither the press nor the public know the facts that irresponsible Hollywood fiction proved so problematic and controversial.

Forgotten in commentary on Brennan’s confirmation were some troubling details suggesting that, on both torture and drone strikes, transparency remains inadequate.

First, Senators had to fight tooth & nail to secure even the most minimal disclosure from the White House. Second, other congressional committees also sought access to the OLC assassination memos, but were denied.

Finally, beyond disclosure of the OLC’s legal memos are important questions about how the standards in them are applied to real facts. The Obama administration and CIA still refuse to answer congressional questions beyond the memos—such as, “How much evidence does the President need to determine that a particular American can be lawfully killed?” These questions are crucial, but Brennan’s confirmation could ensure that Congress receives few answers.

How the facts suggest elastic powers
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Immigration enforcement: a trojan horse?

8:32 am in Uncategorized by Shahid Buttar

Comprehensive immigration reform, along with the fiscal cliff and sequester, has recently dominated Washington. But observers have overlooked how calls for stronger immigration enforcement could undermine the rights of not only immigrants, but also US citizens.

Conservative members of Congress have demanded tighter enforcement as a condition of considering meaningful reform of federal immigration policy. But enforcement-first immigration reform could wreak havoc with the fundamental liberties of citizens. If libertarians recognized how conservative policy proposals threaten their interests, the debate could shift dramatically.

What enhanced immigration enforcement could look like

Immigration enforcement takes primarily two forms: border security and interior enforcement. Each poses a threat to Americans who value their own freedom. The border security debate hides the most severe potential pitfalls, only because the privacy implications of interior enforcement have at least been discussed in public.

Many conservatives want to lock down our borders even more than our federal agencies already have. Yet American’s borders have never been more secure. In 2012, our government spent $18 billion on civil immigration enforcement, more than combined spending on all agencies that enforce criminal laws.

Proposals to further tighten border security have included increasing the deployment of domestic surveillance drones, expanding immigration checkpoints, building a fence, and adding more agents to the already bloated rosters of CBP and ICE.

Beyond border security is interior enforcement, which Bush and Obama both escalated, reflected in record numbers of deportations. Recent proposals emphasize technology: the controversial E-verify program to force employers to enforce federal immigration law, or similar programs like 287(g), Secure Communities, or the Next Generation Initiative, which co-opt local police and undermine public safety.

Confused premises

Whether at the border or within the US, the demand for tighter enforcement ignores reality: net migration across the southern border has already turned negative, driven by harsh profiling, alongside continuing stagnation in job growth, which has made immigration less economically attractive.

In other words, tighter border security and enhanced interior enforcement are unnecessary, at best. According to Marc Rosenblum from the Congressional Research Service, “additional investments at the border may be met with diminishing returns.”

Beyond diminishing returns, enhanced border security could prove nightmarish — not just for undocumented families, but also US citizens. Border security could diminish our own freedom to travel, while interior enforcement poses a covert threat to privacy.

Interior enforcement and the privacy of Americans

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Uncle Sam is watching you

1:43 pm in Uncategorized by Shahid Buttar

"I've got my eye on you."

This week, Congress prepares to abuse the Constitution again, by extending its 2008 amendments to the Foreign Intelligence Surveillance Act (FISA). With the House of Representatives poised to vote today on a premature five year extension, will members remember what they heard when theatrically reading the Constitution on the House floor, or instead entrench the Bush-Cheney legacy beyond even the next administration?

When Congress first voted back in 2008 to give the National Security Agency the power to eavesdrop on any—in other words, every–American without any reason for individual suspicion, it did so without a full picture of what it allowed. Indeed, the full contours of the program remain secret even today.

The only reason the NSA’s spying powers have survived this long is because courts have refused to consider claims that they are unconstitutionally invasive. The Supreme Court will consider one such case this fall — which, if successful, will merely allow the several year process of a litigation challenge to finally begin.

Even though much of it remains shrouded in secrecy, we do know a few things about the NSA’s warrantless spying program authorized by FISA.

We know that it began illegally, without any authorization by Congress and in clear violation of the FISA law crafted by Congress in the 1970s to stop our government from spying on Americans.

We know it is so vast and unchecked that, nearly ten years ago, Attorney General John Ashcroft refused to authorize it, even despite coercion from the Bush White House.

We know that an architect of the program, alarmed at how his work was co-opted to abuse the rights of Americans, blew a whistle about fraud and waste, only to face prosecution by the Obama Administration for espionage–until a federal court ultimately told the government to stop chasing a loyal servant of the American people.

We know that the NSA has violated even this incredibly permissive law, abusing its own powers and the rights of untold numbers of Americans. Our government has admitted to that much, without offering any way to know how widespread those violations have been — or remain.

We know that the executive branch currently interprets parts of other surveillance laws in secret, allowing government activities even beyond the intentions of their authors.

We know that congressional Democrats–including then Senator Obama–joined their Republican colleagues in 2008 to approve FISA, even while both parties paid lip service about defending constitutional values in Washington. Despite the partisan rancor apparent on many issues, Congress marches in lockstep on national security, elevating government power well beyond constitutional limits.

We know that, despite Washington’s wrangling over the budget crisis, the NSA has never justified its massive costs to the American people. In fact, Congress knows neither what the program costs, nor when the NSA’s program has actually helped national security, let alone whether those costs are justified!

We know that FISA has enabled the most pervasive state surveillance system ever known to humankind. The only settings in which powers like it have ever existed are dystopian science fiction novels.

Even the former Soviet Union and contemporary China, for all their efforts to control their people, lacked the resources to conduct the kind of monitoring that the NSA does every day — not only on terror suspects, but on you and your family.

We also know that the Obama administration has supported the Bush-Cheney NSA policy, extending it once before — even though Senator Obama, before winning the White House, promised at one point to vote against it. Until President Obama signed a 2011 law granting our military the potential power to detain any American indefinitely without proof of crime, FISA was the high water mark of the post 9-11 national security state.

Finally, we know that the American people can still defend our rights when aroused. Earlier this year, a grassroots firestorm stopped SOPA and PIPA before they transformed the Internet.

Congress already gave our government the power to conduct mass domestic spying by approving FISA four years ago, but a grassroots clamor this fall could stop that power from being renewed — or at least force Congress to finally do its job and ask tough questions that should have been answered long ago, before writing the NSA yet another blank check.

This post originally appeared at the People’s Blog for the Constitution.

What Comes Next? The Future of the NDAA

10:27 am in Uncategorized by Shahid Buttar

The dead of night (image: photomequickbooth/flickr)

The dead of night (image: photomequickbooth/flickr)

This is the final part of a 3-part FAQ about the National Defense Authorization Act (NDAA) that began with Another Assault in the Dead of Night and continued with Torture Enabling Expanded Detention.

The first installment explained how the NDAA could be used as a tool for political repression, especially in concert with parallel powers expanded by the PATRIOT Act, and upheld by the Supreme Court, that apologists for the NDAA have generally ignored.

The second installment explained how our nation’s failure to pursue accountability for torture enabled the NDAA’s passage, and also portends the recurrence of torture under the domestic military detention regime the NDAA has authorized. It concluded by noting that torture could create artificial legitimacy for military detention by coercing confessions from whomever is subjected to it.

Put simply, allowing torturers to go free created the conditions to politically whitewash abuses whose predictable recurrence the NDAA will enable.  When torture recurs, it will in turn confer false legitimacy on a profoundly un-American system and undermine political will to restore limits on our government’s power, however deviously it may develop in the future.

Q: Have similar laws caused abuses elsewhere? A: Do political repression and genocide count?

Both world history and current events offer crucial insights on the potential results of authorizing detention without trial.

Those results once inspired our nation to wage a World War.  According to the U.S. National Holocaust Memorial Museum:

German authorities under National Socialism established a variety of detention facilities….In time their extensive camp system came to include concentration camps, where persons were incarcerated without observation of the standard norms applying to arrest and custody….

“[U]nofficial” killings….[were] routinely written up as “suicides,” “accidental” deaths, and “justified killings” of prisoners who were “trying to escape,” “assaulting a guard,” “sabotaging production,” or “inciting prisoners to revolt.…”

Incarceration in a concentration camp was rarely linked to a specific crime or actual subversive activity; the SS and police ordered incarceration based on their suspicion that an individual person…would likely commit a crime or engage in a subversive activity in the future. Read the rest of this entry →

The greatest casualty of 9/11: The America we knew

11:31 am in Uncategorized by Shahid Buttar

LibertyReflections on the 9/11 attacks are important and moving. But most overlook the enduring legacy of the attacks, in the form of the vastly greater damage done to American principles over the past decade. Whether in the context of surveillance, torture, or the congressional cowardice that has enabled them, our leaders have sullied the legacy of an America that once inspired the world.

Earlier this summer, when facing a crucial accountability moment for an agency that continues to abuse the rights of millions of Americans, members of Congress asked no tough questions, avoided controversy, and submitted to a White House proposal to entrench the FBI leadership—at the same time as they fought to the knuckles over issues that Congress created in the first place by spending the country into a fiscal black hole and absurdly cutting taxes in the midst of multiple wars.

Most astounding in all this is Congress’s apparent abandonment of its own institutional interests. Even in the face of documented lies by the FBI’s leadership to congressional committees and repeated proof that Congress, the press, and the public are hearing only tiny slices of the whole truth, Congress has failed to use its many tools to seek transparency and investigate executive abuses.

There was a time that America’s leaders took seriously their oaths to defend the Constitution by conducting aggressive oversight of executive agencies. A generation ago, for instance, the Church and Pike Committees investigated many of the same practices that have recurred in the past decade. The failure of their successors in Congress threatens the future of democracy in America and reflects a disturbing pattern of congressional submission to executive power.

Congress began lining up to defend executive abuses in the face of public criticism soon after the 9/11 attacks. Special registration requirements, the PATRIOT Act’s draconian surveillance powers, unprecedented authorities to arbitrarily—and indefinitely—detain individuals on the mere basis of accusation, and major revisions to the FBI Guidelines all generated little debate in Congress.

And while we might find comfort in the hope that a counter-movement would emerge, that hope is misplaced. Despite running on a platform announcing that the “choice between liberty and security” was “false,” the Obama administration has continued—and even expanded—the Bush administration’s surveillance and secrecy. And by reversing course on accountability for torture, the Obama administration affirmed that criminals with enough political connections would receive judges’ robes rather than prison terms.

Even when ordered by multiple courts to release evidence of detainee abuse, the White House refused. In fall 2009, in the midst of a year-long battle to extend healthcare to 42 million underinsured Americans, Congress took less than a week to change the law at the Obama administration’s request so that evidence of the Bush administration’s abuses would remain hidden from the public. This, after abandoning Obama’s original nominee to lead the Office of Legal Counsel at the Justice Department because she favored applying the law equally to all accused criminals, regardless of their political position.

Leave aside that hiding evidence of detainee abuse places our soldiers at risk abroad by driving the recruitment efforts of violent extremists and effectively inviting our enemies to treat our troops in the same inhumane way. Ignore the 2.3 million Americans rotting behind bars—25 percent of the world’s prisoners, in the nation that claims to lead the free world—while politically connected criminals enjoy power, prestige, and even lifetime judicial office. Forget about the sacrifices of the soldiers who gave their lives in WWII to usher in a lost era of peace, or how human rights precedents that our nation established in Nuremberg have been wrecked by our unwillingness to pursue uncomfortable truths.

Think instead about how the Freedom of Information Act (FOIA) came to be: through controversy stoked by grassroots activists who broke into an FBI office and elite critics who used their findings to spark a two-year congressional investigation documenting heinous abuses by FBI and CIA officials. The FOIA stood for 40 years, but when courts interpreted it to require the revelation of Pentagon crimes, Congress quickly joined President Obama to change the law. “Move along. Nothing to see here…”

Think about why the CIA destroyed videotapes documenting torture. And then remember the debate in the wake of Osama bin Laden’s elimination over whether to revive torture, even though the Defense Department said it was unhelpful and claimed to have ended the practice.

The American people voted in 2008 for change, including restoring constitutional protections against unchecked secret dragnet surveillance and accountability for human rights abuses. The abject failure of our government to reflect that mandate reflects how perverted our republic has grown. For a project that took two and a half centuries to build, the past decade has been catastrophic for democracy in America. When future generations look back on our failures, the attacks of a decade ago will be the least of their concerns.


Ten years ago on September 11, 2001, the United States suffered the worst terrorist attack in the nation’s history. In the panic of the weeks that followed, the American government began changing its counterterrorism policies in ways that undermined constitutionally guaranteed civil liberties, culminating in the passage of the USA PATRIOT Act on October 26, 2001. Within two weeks of that law’s passage, on November 10, 2001, organizers in Massachusetts founded the Bill of Rights Defense Committee to fight against that dangerous law and others that followed.

To mark the tenth anniversary of these pivotal events in American history and of our organization itself, the Bill of Rights Defense Committee is running a series of articles looking back on the last ten years. This post is part of that series.

Out of the Frying Pan and Into the Fire: Why the FBI Needs New Leadership

8:15 am in Uncategorized by Shahid Buttar

FBI Director Robert MuellerThe last ten years have witnessed an assault on the constitutional rights of law-abiding Americans, led largely by the FBI. Appointed mere days before the 9/11 attacks, Director Robert S. Mueller III has guided the bureau through the resurrection of many long discredited practices from its COINTELPRO era. Yet, the Obama administration has proposed extending Mueller’s term as FBI director. Congress should reject the proposal and insist on a nominee from outside the bureau to restore accountability, law and order. Just ask Nick Merrill in New York, Joe Iosbaker in Chicago or Ahmadullah Niazi in Los Angeles: three law-abiding Americans whose constitutional rights are among the casualties of the last decade.

The last time Congress extended the term of FBI director was in 1972, to keep J. Edgar Hoover in office. Years later, when the Church and Pike committees finally exposed the notorious counterintelligence program (aka COINTELPRO), Congress discovered that Hoover presided over severe abuses for decades.

During the era of Hoover and COINTELPRO, the FBI’s most famous target was Dr. Martin Luther King Jr., who the bureau targeted with a smear campaign aiming to split up his marriage and drive him to suicide. The National Association for the Advancement of Colored People was accused—without evidence—of subverting the state, as were activists promoting Puerto Rican independence, an end to the war in Vietnam, women’s rights and civil rights for racial minorities including Native Americans and African-Americans. According to the US Senate:

Many of the techniques used would be intolerable in a democratic society even if all of the targets had been involved in violent activity, but COINTELPRO went far beyond that … the bureau conducted a sophisticated vigilante operation aimed squarely at preventing the exercise of First Amendment rights of speech and association.

Repeating errors from Hoover’s discredited era hardly offers hope to restore law and order to the FBI. Given the bureau’s history as a recidivist agency notorious for recurring abuses of civil rights, why has the president proposed to extend the director’s term for the first time in nearly 40 years?

According to The Washington Post, the administration simply failed to get its act together in time: “The president’s request that Congress tinker with the 10-year term limit sets a bad precedent…. It may be the path of less resistance to retain an FBI director…. But staffing an administration on schedule is part of the president’s job.” Sen. Chuck Grassley (R-Iowa) agreed that the proposed extension would be “a risky precedent to set. Thirty-five years ago, Congress limited the FBI director’s term to one 10-year appointment as an important safeguard against improper political influence and abuses of the past.”

The Post is correct that the proposed extension threatens the “integrity of the bureau,” and Grassley is right that the precedent is dangerous—although both ignored the bureau’s mounting failures and abuses. The president’s proposal appears only worse when placed in the context of Mueller’s tenure.

Don’t take my word for it. According to my colleagues at the American Civil Liberties Union, “the FBI’s significant misuse of its authorities under the USA PATRIOT Act and the Foreign Intelligence Surveillance Act, the infiltration of mosques, the abuse of the material witness statute, the FBI surveillance of peaceful groups with no evidence of criminal wrongdoing and the mishandling of the FBI watch list have raised significant civil liberties concerns” during Mueller’s tenure. Similarly, a coalition of 46 civil rights organizations wrote to Congress last year, arguing that:

In considering the potential necessity of legislation to protect civil rights and civil liberties, Congress should not grant [FBI policies] artificial legitimacy, nor should the bureau be afforded credibility that it has not only failed to earn, but actively undermined…. [T]he Chairman of the House Judiciary Committee called for the FBI’s General Counsel to be replaced…. As a repeat offender, the bureau is long overdue for intervention by Congress.

When the Senate Judiciary Committee questioned the FBI director about the bureau’s surveillance activities, Mueller essentially lied to Congress, covering his tracks with a private letter to some senators admitting abject lawlessness and disclaiming any meaningful limits on the bureau’s authority. These violations are offensive in themselves; failing to accurately answer crucial Congressional questions in order to evade accountability is even worse.

Each of these problems, alone, is enough to demand change, rather than continuity, at the FBI. Taken together, they indicate a mounting constitutional crisis screaming out for the “change we can believe in” that the president promised three years ago.

Let’s start with the PATRIOT Act. Among other things, PATRIOT expanded national security letters (NSLs): administrative subpoenas immune from review, checks, or balances, demanding private records (often from third parties) while gagging the recipients and preventing disclosure to the public, press or Congress.

Beyond violating the privacy and Fourth Amendment rights of their targets, NSLs also violate the rights of recipients, such as Merrill, an Internet service provider in New York City silenced by the threat of prosecution for simply raising his voice about a letter he received demanding a customer’s private information.

The Justice Department’s internal watchdog has repeatedly examined the FBI’s use of NSLs. Every time, the inspector general documented pervasive, systemic—and even ongoing and expanding—violations by the bureau. The PATRIOT Act dramatically expanded the FBI’s powers, but under Mueller’s leadership, the bureau exceeded even those, repeatedly breaking the few remaining limits guarding the constitutional rights of law-abiding Americans.

And that’s just the beginning. Perhaps to justify its expanding budget in a time of fiscal crisis, the FBI has generated numerous fake “terrorist plots.” The Bureau’s modus operandi has been to recruit ex-convicts, give them huge sums of cash to bribe con men and then train and equip those targets for months (or even years) to commit fake attacks before making dramatic arrests amid sycophantic media fanfare.

In Newburgh, a depressed post-industrial town in upstate New York, the bureau offered tens of thousands of dollars each to four mentally unstable con men (including a schizophrenic and a heroin addict), whose worst real offense appears to be fraud, rather than the bomb plot of which they were ultimately convicted. Sending paid government informants to initiate violent plots presumes the guilt of entire communities on the basis of association and multiplies that offense by profiling according to race, religion or ideology.

Even beyond civil liberties, the strategy is an abject national security failure: profiling overlooks potential threats outside the profile, alienates affected communities, undermines opportunities to gain human intelligence and even encourages the violent extremism that the bureau claims to prevent. Even worse, the strategy does nothing to address real sources of potential terrorism.

In drug investigations, law enforcement agents routinely target producers or distributors—rather than consumers—because prosecuting consumers does nothing to actually reduce the supply of drugs. But under Mueller, the FBI’s counterterrorism efforts have ignored producers (those who propose real plots) and distributors (who recruit others to execute them) to settle for prosecuting consumers of terrorism—and fake ones, at that.

It gets worse. Emboldened by a Supreme Court decision last spring, the FBI began a political witch hunt last fall targeting dozens of peace and labor activists in Chicago and Minneapolis. The raids and secret grand jury investigations not only offend the First Amendment, but also reflect the kind of abuse for which the bureau grew infamous under the leadership of J. Edgar Hoover.

Finally, the bureau has enmeshed itself in the business of immigration enforcement, by supplying to Immigration and Customs Enforcement pre-conviction arrest data from local police departments around the country—even over the objections of local governing bodies. By supporting the Secure Communities program, the FBI is playing a key role going forward in undermining public safety and enabling a continuing “humanitarian crisis” in immigrant communities.

Like the now-infamous J. Edgar Hoover, Mueller has received widespread praise during his tenure for the bureau’s supposedly effective work under his leadership. It took a two-year Congressional investigation and tens of thousands of pages of records and testimony for the FBI’s dramatic abuses under Hoover to finally come to light. Mueller is no different; he has received praise from the administration and the Hill only because the FBI cloaks itself in secrecy, and the many communities raising their voices have been silenced by a mainstream press that has uncritically accepted the official narrative.

Rather than extend Mueller’s term, Congress should insist on a nominee from outside the bureau and heed the calls of former agents who have recommended “[a] wide-ranging Congressional investigation of the sort conducted by the Church Committee,” to uncover further abuses that remain secret. If Congress wants to pass legislation involving the FBI, rather than extend Mueller’s term, it should impose a legislative charter to restore law to a lawless domestic intelligence agency that has, yet again, run amok.

Creative Commons LicenseThis work, originally published by Truthout, is licensed under a Creative Commons Attribution-Noncommercial 3.0 United States License.